Thursday, January 28, 2016

What’s Wrong with the PBUS Agenda?

I just received a copy of the
2016 PBUS Winter Conference Agenda, and it includes a breakout session called
“Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New
Generation of Bail Reform and Pretrial Release.” More specifically, it says the
panel will “inform bail agents of the threatening arguments being made against
the bail industry, arm agents with the ‘new’ vocabulary to use against such
arguments and most importantly, educate bail agents about what solutions can be
offered to minimize threats affecting the bail industry.” A good topic, right?
What could possibly be wrong with it?

Well, for one thing, the
person listed first on the panel is an insurance lobbyist who used to run the
American Bail Coalition, which is no friend to bail agents. In fact, when I first
started working in bail reform, ABC’s main stance was that there was no bail
reform movement, there never would be, and that there was no reason for anyone
to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a
“new generation of bail reform,” something I figured out and published five
years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail
reform, as most of you now know, is not so much a fight against bail agents as
it is a fight about money at bail – which is why the statement on the agenda of
all the “threatening arguments against the bail industry” is so misleading. For
example, I know the people working on the constitutional amendment in New
Mexico, and they rarely talk about the commercial bail industry. Instead, they find
fault with the lack of public safety in a money-based system and with secured
financial conditions that not everyone can pay. So if you get to the panel on
lessons from New Jersey and all they talk about is how to fight to keep things
essentially the way they are today – with bail agents only involved with
arbitrarily inflated financial conditions, with your focus only on court
appearance and not public safety, and with insurance companies making money for
doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New
Jersey – and now numerous other states – is that when people are fully educated
in bail, they automatically move toward change, and that change involves
adopting a risk-informed system of pretrial release and detention (both for
assessment and supervision) using less or no money. This lesson is playing out
across the country, and I can’t even keep up with the states, entities, and
persons who are all going in the same direction. By arguing to keep things the
way they are, ABC is on the wrong side of history.

I’m about the only one saying
this, but I’m being honest. A true private/public partnership in bail is only
possible through what I call “private pretrial.” Some of my public pretrial
friends don’t like when I mention it, and others don’t care because they don’t
think you can pull it off. But I do, and I’ve seen it work. I’ve written about
it enough that I don’t have to explain it here, but realize this: because the
bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll
tell you that it’ll never work and convince you to keep fighting for the status
quo.

Last month alone I worked
with the White House, DOJ, five different states (of over 20 states that I worked
with last year), and numerous public and private entities trying to “fix” bail,
and they all intend to make major improvements because they don’t perceive
anything valuable about the existing system. Meanwhile, the current head of ABC
was on some funny little radio show calling bail reform “an epic battle” and
arguing that if we dare to move from the way things are, we’ll be “setting a course
for planet hell” and be required to create “state and local level U.S.
Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk
radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents.
The bail insurance companies will use the “war against you” analogy simply to
get you riled up to fight the bail insurance companies’ fight. But their fight
is simply not in your interest. If you only believe one thing that I say,
believe this: no matter what the bail insurance companies say, most states have
decided that the current system – with all of those huge amounts of money based
on charge – is fundamentally flawed, and so it’s going to change. Your goal
should be to see where you fit into the new system. Arguing for the status quo,
which is really the only argument the insurance companies have that will continue
paying for their executives and their lobbyists, will ultimately only ensure
that you’re not any part of the system we create.

So what’s wrong with the PBUS
agenda? Well, from here it looks mostly
as if the panelists on bail reform are going to try to convince you to fight to
keep the status quo – to “arm” you with a new vocabulary, to help you to counter
various arguments and to “minimize threats” to the way things work today. But
they don’t seem to be offering any advice on how you can fit in when the
country makes its inevitable shift. I won’t be there, but maybe you should ask
them about all that.

About Me

Hello everyone! I'm a criminal justice system analyst with 25 years of legal experience. I was editor-in-chief of the law journal in law school, and I worked as a law clerk to a federal appellate judge right after graduation. I then worked in private practice for several years in Washington DC before I came back to Colorado, where I became interested in criminal justice. I worked for both the state and federal courts of appeals as a staff attorney doing criminal appeals, and I also taught at Washburn Law School for a year before I got involved in the local criminal justice system issues in Jefferson County, Colorado. In that job I quickly realized that there was a lot of room for criminal justice reform, and that's what I've been doing ever since.

For the past several years I've been working on reforming America's traditional system of administering bail. Believe me, it really needs it. I started this blog because I was getting somewhat fed up with all of the slanted misinformation and self-serving research and analyses circulated in the field. This is my little way of chiming in.

I think I've had plenty of formal education, and I hope I'm not forced to get any more (although I'm taking two classes on Coursera!). I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college.

I am currently the Executive Director of a Colorado nonprofit called the Center for Legal and Evidence-Based Practices. It serves as my platform for performing neutral and objective research and analysis of topics relating to bail and pretrial justice. I hope that you'll get something out of this blog, which will undoubtedly contain a few things you aren't likely to find anywhere else.